A mainland law firm has started billing Honolulu for criminal defense advice related to the federal rail investigation despite City Council members voting last month to reject hiring the firm to represent city employees.

At the time that council members shot down the proposal to retain Farella Braun + Martel for $50,000, the firm was already working for the city on rail issues – as a consultant.

On Thursday, Acting Corporation Counsel Paul Aoki couldn’t remember whether he had informed council members about the arrangement. He estimated the firm has been working on rail matters for “months.”

“We hire people as necessary as consultants without getting council approval and without specific notice to the council,” he said.

“As far as I’m concerned this is no different. It’s the same thing. If we’re hiring them for something that does require council approval, we will go and get it from the council, which is what we tried to do. If we don’t need council approval, then that’s a different situation, and that’s the situation we’re in.” 

He declined to describe the firm’s job duties, but he did say that the council’s refusal to OK hiring the lawyers as “special deputy” corporation counsel attorneys limits what they can do. The attorneys are not independently representing city employees as they would have with the council’s approval.

“They’re advising us, providing us with expertise in an area that we do not have expertise in,” he said. “It’s not an area you can do on-the-job training. It’s not ideal from our point of view, but it’s the best we can do in light of the council’s decision.”

Aoki also wouldn’t say how much the firm has billed taxpayers so far. Asked why he wouldn’t share that information, he said: “I’m not giving you a reason.”

Civil Beat filed a public records request for invoices related to the work but was denied on the grounds that disclosure would interfere with the “legitimate government function of reviewing, amending, revising and approving invoices submitted by contractors.”

The city has lawyered up as federal investigators probe city hall as part of their review of the Honolulu Authority for Rapid Transportation. HART has received at least three subpoenas from the feds since February.

Aoki would not answer questions about which city employees are embroiled in the rail investigation or how many have received requests or demands for information from investigators. That runs the risk of interfering with the U.S. Department of Justice’s work, he said.

“In the spirit of trying to cooperate with the investigation, we don’t want to talk about it,” he said.

Farella Braun + Martel, a San Francisco firm, has been working for Honolulu since January when it was hired within days of Corporation Counsel Donna Leong receiving a target letter in another federal investigation: the criminal corruption probe involving Katherine and Louis Kealoha, the former deputy prosecutor and former police chief. That case has so far resulted in convictions for the Kealohas and four Honolulu police officers.

The attorneys were hired to fight in federal court to limit disclosure of certain documents seized from city offices in January. Invoices submitted in March, April, May and June total $149,686, according to records obtained by Civil Beat. The maximum amount allowed under the contract is $150,000.

On Oct. 22, the Executive Matters and Legal Affairs Committee was briefed by the Corporation Counsel’s office about the need to hire Farella Braun + Martel and voted 4-3 against approving the contract.

Council Chair Ikaika Anderson and Councilmen Brandon Elefante and Ron Menor voted in favor. Members Carol Fukunaga, Ann Kobayashi, Heidi Tsuneyoshi and Tommy Waters voted against the measure. Council members Joey Manahan and Kymberly Pine did not attend.

On Thursday night, Waters said the Corporation Counsel’s office never informed them that the city was already working with the firm on rail-related matters.

“We absolutely should not hire criminal defense attorneys to represent people charged with crimes,” Waters said.

Menor also said he was not aware of the consulting work.

“That’s interesting,” said Menor, who chairs the Executive Matters and Legal Affairs Committee. “I want to find out more in terms of what their justification is. They need to justify it.”

Two other council members, Carol Fukunaga and Heidi Tsuneyoshi, declined to say whether they knew of the billings when they voted not to retain the firm, citing the need to keep the group’s executive sessions confidential.

Tsuneyoshi added, however, “If there was money expended to even do consultation work from that company, then that should be brought to light.”